Former FBI Director James Comey pleaded not guilty on Wednesday to the two counts of lying to Congress being brought against him by the Trump administration. On the same day, ABC News reported that the prosecutors who were working on the Comey case — who were fired for their refusal to charge him — believed the key witness against Comey was fatally flawed.
It’s a case that appears both flimsy and nonetheless loaded with meaning for the future of American justice. Vox senior correspondent Andrew Prokop has been covering Comey, President Donald Trump, and their increasingly embittered feud for years. I wanted to ask him four big questions as the case moves forward.
You’ve been covering Comey for so long — back to the Hillary Clinton email investigation. How surprising is it that we’ve ended up here?
I think the real change is from 2016 when Comey was announcing his findings on the Hillary Clinton email case. At that time, he got a lot of criticism, but it was considered politically unthinkable that his job would be at risk or that anyone would interfere with his management of the FBI in any significant way. When Trump won, he stayed in the job — until, of course, he ran afoul of Trump and was fired. But even the firing of Comey then resulted in Trump getting himself into more trouble, kickstarting the Robert Mueller investigation.
Fast forward to the present, and the independence of the Justice Department and FBI has completely collapsed, and Trump has essentially emerged triumphant in this long-running feud. He finally got the payback and the indictment that he wanted. It’s a pretty stunning turn of events that just goes to show how successful Trump has been in a way that really would’ve been pretty far-fetched to imagine back then.
That’s the meta-narrative. Let’s talk about the case. Comey pleaded not guilty on Wednesday morning. What’s next?
It looks like things are going to move very quickly, because the case is in the Eastern District of Virginia, commonly called “the rocket docket.” The judge set some very fast-approaching deadlines today for pre-trial motions later in October.
But this case may never reach trial, because Comey’s attorney Patrick Fitzgerald said in court today that he was going to file several motions: to have the case thrown out for vindictive prosecution, to argue that the crony Trump put in as the US attorney for the Eastern District of Virginia was unlawfully appointed, and to argue the grand jury process was used in an improper way.
They are going to try to get this thrown out before it even goes to trial, and the judge seems to be disposed to acting very quickly on it.
Then, how can there be an indictment in the first place?
When a case is presented to a grand jury, prosecutors get full control over the information they present. It is not an adversarial process, and the defendant has no say whatsoever. So a prosecutor could give the grand jury a very misleading, incomplete, or one-sided version of events that completely ignores exculpatory evidence.
The grand jury process is secret and behind closed doors, so we don’t know exactly what they were presented with. But we do know that the grand jury rejected one of the three counts that they tried to charge, which is very rare. The other two counts they approved, but they were split on it. They had a notation that, on both counts, only 14 out of 23 grand jurors approved of those counts, and that is with the very skewed, selective information they were getting.
So even the grand jury, with its limited information relying entirely on prosecutors, is mixed on whether it’s worth an indictment. With an actual jury, which requires unanimity for conviction, there’s no way they’re going to convict. It’s basically unthinkable if the case is that weak, even in the grand jury stage.
The ordinary process at DOJ would hold that this case should not have been brought, because you are not supposed to bring cases that you think will not end in conviction. But, of course, Trump circumvented the ordinary process. He pushed out the US attorney. He installed Lindsay Halligan instead, and she seems to have rushed this forward just before the statute of limitations was about to expire.
So what are the stakes here, in the longer term? What will this case tell us about the country we’re living in?
I think this case reveals paradoxically both the dangers of what Trump’s doing and the limitations. He proved that he can fire enough people and appoint enough hacks to get a grand jury indictment of somebody. But then, once that happens, it could get thrown out by a judge. It could be rejected by a jury. There are many more steps before an actual conviction, and this case looks extraordinarily weak and unlikely to end in a conviction.
But that might not be the case for every other case that Trump’s people are considering bringing against his political enemies. What if they managed to get the case before a very far-right Trump judge? What if it’s in a red district where a lot of people are more predisposed to convict?
This is still dangerous. But if the Comey case ends in a big embarrassment for the administration, with either the charges being thrown out or Comey being acquitted, I do think it will be seen as pretty revealing that Trump tried to lock up Comey and failed. It sends a message that anybody can resist Trump and that there’s no reason to obey in advance or to fear that he’s going to actually be able to make good on the threats and intimidation he’s trying to bring to bear against any of his critics and opponents.
